Dodging child support? Here's how to get your hands on your ex's pension
Defaulting dads face having maintenance monies deducted from their retirement savings if they shirk their duty to pay for their children.
Any parent can approach the maintenance court to ask for an order against the defaulting parent’s retirement fund.
However, Oupa Segalwe, acting spokesperson for the Public Protector’s office, says for a parent to claim maintenance from the other parent’s retirement fund, the fund member must ideally have left their employment and their pension or provident fund and must be due to receive a payment from their fund.
This may be if the member resigns, retires, is retrenched or dismissed.
In a recent case where a former Western Cape policeman and father of two was ordered to pay over R344,000 in arrear and future maintenance from his retirement savings to his children, he was with the SAPS for more than 12 years before he was dismissed.
Segalwe says if the defaulting parent is still employed, the party seeking maintenance should obtain a garnishee order in terms of which the defaulter’s employer will deduct the maintenance from their salary and pay it to the children’s guardian.
If the parent is self-employed, an order for the attachment of their bank account can be issued. Other options include warrants of execution against their properties to be attached and sold in execution to cover a portion or all the arrears owed, he says.
However, Naleen Jeram, a legal manager at Momentum Corporate and an adjunct professor at the UCT law faculty, says the law allows a private retirement fund to deduct a maintenance claim from a parent’s fund benefit while that parent is working and contributing to his or her retirement savings, even though the member is not yet entitled to a benefit from the fund.
Jeram says the Pension Funds Act and the Maintenance Act provide, for example, for a mother who does not receive maintenance from the father of the child or children under an existing maintenance order, to approach the maintenance court for an order against the father’s retirement fund to pay the outstanding amount.
If the defaulting parent is still employed, the party seeking maintenance should obtain a garnishee order for their employer to deduct the maintenance from their salary.Oupa Segalwe, acting spokesperson for the Public Protector’s office.
He says maintenance orders can be made against pension funds, provident funds, preservation funds or retirement annuity funds.
Segalwe adds that the maintenance court usually grants such an attachment order when all other avenues to recover the arrear amounts have been exhausted and have been unsuccessful.
In the case of the policeman the maintenance court had granted an attachment order in September 2012 against the father’s pension held at the Governement Employees Pension Fund (GEPF) for maintenance arrears of R40,000. The GEPF failed to pay despite continuous follow-ups from the maintenance court and the mother.
In September 2015, the court issued a new order, attaching the father’s pension for arrears of R72,000. Again, the GEPF failed to pay.
In November 2016, the mother obtained a further court order for the attachment of outstanding arrears of R104,000 plus R240,000 for future maintenance, totalling R344,000, and yet again the GEPF failed to pay.
Having exhausted all her remedies, last year the mother approached the Public Protector for assistance. The Public Protector intervened and raised the matter with GEPF and within five months, the GEPF paid out the monies, Segalwe says.
Jeram says one of the key requirements for a court order to be legally binding on a fund is that the fund must be clearly identified by name in the court order.
Most mothers often don’t know the name of the fund to which their children’s father belongs. They may only know that he has pension monies with an administrator of funds such as Old Mutual or Sanlam or Momentum or only know the name of the employer.
He suggests they approach the fund or the administrator and explain that they are seeking a maintenance order.
Generally fund administrators will be willing to assist where the well-being of children is at stake.Naleen Jeram, a legal manager at Momentum Corporate.
Jeram says generally fund administrators will be willing to assist where the well-being of children is at stake. What they may not be prepared to provide is the value of the father’s fund but this is not relevant because a maintenance claim should be based on the financial needs of the children and what the court has ordered and not on how much he has accumulated in his retirement fund.
In the unlikely event that the fund administrator refuses to provide the fund’s name, the mother can obtain a court order ordering the fund to release the information. In the case of private retirement funds, they can turn to the Pension Funds Adjudicator, and in the case of state funds, to the Public Protector.
Other requirements of the Pension Funds legislation are that the order must be served on the fund. The maintenance court will usually ensure that the papers are served on the fund on behalf of the mother.
The amount that needs to be paid must be clearly stated in the court order and it must state whether it is for arrear or future maintenance.
Arrear maintenance is fairly easy to determine, because if the court for example ordered that R500 a month must be paid for a child, then this figure is simply multiplied by the number of months that the payments are outstanding. Arrear maintenance is usually paid as a lump sum.
According to Jeram, guardians can apply for future maintenance when, despite the father being up to date with maintenance payments, the mother has a reasonable suspicion that he may stop making payments.
If the magistrate at the maintenance court makes an order for future maintenance to be paid by the retirement fund, it can be for monthly payments or for a lump sum.
Jeram says that in the case where a mother knows the father will be leaving his fund (retiring, resigning or perhaps facing retrenchment) and she is concerned that he may squander or hide his retirement fund proceeds when he receives it, she can approach the maintenance court for an interdict to stop the fund from paying out any monies until the maintenance inquiry is finalised.
A maintenance court is usually less formal than other courts and parents are able to approach the court without attorneys, he says.
Segalwe says once a maintenance court order that attaches the member’s retirement fund is issued, the fund has to comply with the court order. If the fund has a problem with the court order, it has to approach the maintenance court and state the reasons why the order cannot be complied with.
Similarly, a retirement fund member can bring an urgent application to set aside the attachment order against his or her fund. The maintenance court will then hear the application and decide.